courts have rightly refused to grant defendants such a powerful weapon against

public law enforcement.” United States v. W.T. Grant Co., 345 U.S. 629, 632

(1953). 1

DFA’s alternative argument, that no remedy would have been proper for the

unlawful original arrangement, is also unsound. DFA argues that the revised deal

1DFA’s promise to notify the government thirty days before it again changes its arrangement (DFA Br. 44-46) does not justify an exception to this well- established principle. Even if the promise were enforceable, the government would be put to the expense of beginning a new enforcement action (which could also be blocked, under DFA’s theory, by yet another last-minute change), while DFA enjoyed the benefits of an unlawful arrangement.

4

is lawful, so there is no need to remedy the original violation. DFA Br. 46-48.

But the revised deal is not lawful, see pp. 8-19 infra and Gov’t Br. 31-37, and

even if it were, the government would be entitled at least to an injunction against

resumption of the original arrangement. See United States v. E.I. du Pont de

that case the court of appeals found specific language in the district court’s order

4Defendants did not make a Daubert challenge to the government’s dairy industry expert, John Johnson, who described how DFA’s role as the dairies’ raw milk supplier and its veto powers could impact the dairies’ competitiveness. See Expert Report of John P. Johnson 5-6, 21-23, Plaintiffs’ Counterstatement to Defendant DFA’s Statement of Material Facts Not in Dispute (“Counterstatement”), ex. 37, R-108, JA 1218-19, 1234-36.

5DFA erroneously accuses the government of inviting “this Court to hear argument on DFA’s motion to strike” the expert testimony (DFA Br. 32 n.77). This motion is properly decided in the first instance by the district court. See Lewis v. Philip Morris, Inc., 355 F.3d 515, 533 n.27 (6th Cir.), cert. denied, 125 S.Ct. 61 (2004). DFA’s attempt to incorporate by reference the arguments in its motions to strike (DFA Br. 32 n.77) is improper. See Northland Ins. Co. v. Stewart Title Guar. Co., 327 F.3d 448, 452-53 (6th Cir. 2003). And it inappropriately designates these motions’ supporting memoranda of law and numerous other memoranda of law without “independent relevance” for inclusion in the joint appendix in violation of 6th Circuit Rule 30(f)(1)(E) and Federal Rule of Appellate Procedure 30(a)(2). See DFA Br. 53-56. If the Court considers these memoranda, it should also consider the government’s responsive memoranda, which are in the record though not in the joint appendix.

14

that characterized the disputed testimony as “mere assumptions.” 6Here, in

contrast, nothing in the district court’s order could possibly be interpreted to assert

any basis for excluding these experts’ testimony. Presumably, the court viewed

this testimony as insufficient to raise a triable issue based on its erroneous belief

that involvement in the day-to-day operations of the acquiring firm was a sine qua

non of a Section 7 violation. Op. 13, JA 89.

The government also produced statistical evidence generated by Professor

7See also United States v. General Dynamics Corp., 415 U.S. 486, 505 (1974) (“[T]he mere nonoccurrence of a substantial lessening of competition in the interval between acquisition and trial does not mean that no substantial lessening will develop thereafter; the essential question remains whether the probability of such future impact exists at the time of trial.”); FTC v. Consol. Foods Corp., 380 U.S. 592, 598 (1965) (“If the post-acquisition evidence were given conclusive weight or allowed to override all probabilities, then acquisitions would go forward

15

subject to the plaintiff’s control, like the school bidding data that Professor Scott

14DFA cites to page 51 of Scott’s April 26, 2004 deposition by citing to exhibits that, while containing portions of that deposition, do not contain this page. See DFA Br. 11 n.28 (citing exhibit A to Defendants’ Opposition to Plaintiffs’ Motion to Exclude Evidence Relating to Recent Revisions to the Southern Belle and NDH Operating Agreements, R-162, and exhibit 2 to Defendant DFA’s Statement of Material Facts Not in Dispute, R-99); DFA Br. 15 n.48 (citing exhibit A to Defendant DFA’s Memorandum in Support of Motion for Sanctions and to Exclude Evidence, R-72). This page, however, is found in exhibit 1 to Defendant Southern Belle Dairy Co., LLC’s Reply to Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment, R-127, and is thus

18

was no such “concession.” Professor Scott did not testify as DFA asserts; rather,

he testified that he did not know what evidence of anticompetitive effects the

government had when it filed its complaint. 15

C. The Government Was Entitled to Discovery on the Revisions to the Deal

DFA defends the district court’s implicit denial of the government’s request

for Federal Rule of Civil Procedure 56(f) discovery related to the newly revised

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